In the aftermath of the Civil War, the Constitution was amended to disqualify from office political leaders who had betrayed their oath and were “involved in insurrection or rebellion” against the United States.

Many historians believed that Section 3 provision of the 14th Amendment became a dead letter after Congress passed amnesty laws for ex-Confederates in 1872 and 1898. The latter stated that the “disability imposed” by Section 3 “is hereby lifted”.

But some law professors who have delved deeply into the history of the time say that this view is wrong.

“Despite its long slumber, Section 3 … is alive and well, and it could have a major impact on next year’s election, argue law professors William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas, both well-regarded conservatives.

In a 126-page legislative review published last month, they refocused the Constitution’s response to the country’s biggest insurgency and significantly increased the likelihood that the Supreme Court will face the allegation that former President Trump, the Republican frontrunner, for 2024, is legally barred from office.

Baude and Paulsen are originalists who believe that the terms of the Constitution should be interpreted in accordance with how they were understood at the time they were adopted. They say the word “rebellion” was broadly understood to refer to the concerted use of force or pressure to hinder or overthrow the authority of the government.

“It encompasses a wide range of behaviors that attack the authority of the United States,” they wrote.

They also argue that enforcement of the disqualification clause does not depend on Congress or the Justice Department. Instead, they say this power rests with the hundreds of state, provincial or federal officials who can determine a candidate’s eligibility for office and whose name may appear on the ballot.

“Taking Section 3 seriously means that the constitutional disqualifications from future state and federal office extend to participants in the attempted undoing of the 2020 presidential election, including former President Donald Trump and others,” they say. Their argument could extend to challenging senators who supported the January 6 insurgents.

Due to the sheer number of state attorneys and election officials, it is likely there will be a challenge to Trump’s eligibility in the coming year. And if so, it won’t be long before such a claim is appealed, first in a federal court and not long after that in the Supreme Court.

The judges are unlikely to rule on such a claim if they can avoid it. However, they may have little choice if a federal judge or a state Supreme Court were to rule that Trump is ineligible to run for office in the future and cannot appear on the ballot.

Washington attorney Adam Unikowsky, former Supreme Court clerk for Justice Antonin Scalia, wrote a comprehensive analysis last week of how such a claim could fare in the courts. He said judges, when faced with the question, will be hard pressed to explain why Trump’s actions do not qualify as participation in an insurgency.

“Is the Supreme Court actually going to disqualify Trump? In my opinion, probably not, but the odds are not trivial that it will,” he wrote. “In my opinion, depending on Trump continuing to run for president, there is a 10% chance that the Supreme Court will rule before the 2024 election that Trump is constitutionally ineligible.”

Representative Adam

B.

Schiff (D-Burbank), who led a house impeachment

against from

Trump agreed that the former president should be disqualified by law.

I think it’s a valid argument, he said on MSNBC on Sunday. The 14th Amendment, sec. 3 is quite clear: if you engage in rebellion or rebellion against the government, or if you give aid and comfort to those who do, you will be disqualified from running. It doesn’t require you to be convicted of rebellion, it just requires you to be involved in these acts.”

The outcome depends on the Supreme Court, he said.

“I think this will be tested when [a state] The Secretary of State refuses to put him on the ballot, or puts him on the ballot and is challenged by a litigant. I imagine it will go to the Supreme Court, and that’s the big question mark in all of this: What will the Supreme Court do?

Other legal experts question the idea that judges could deprive millions of voters of the right to choose their preferred candidate.

Stanford law

P

Professor Michael McConnell does

a

conservative and a friend of Baude and Paulsen, but said he strongly disagrees with them on this point.

He said Congress could and should have disqualified Trump from new office by convicting him of inciting an insurrection after his second impeachment trial in February 2021. But it takes a two-thirds majority of the Senate to convict, and all but seven Republicans have voted to acquit Trump. The vote was 57-43 in favor of a conviction.

McConnell also said that under the Biden administration, the Justice Department could have charged Trump with inciting an insurrection, but he did not. A federal law (18 USC 2383) makes it a crime to incite, assist or participate in an insurrection, but Special Counsel Jack Smith instead charged Trump with obstructing official proceedings and defrauding the United States.

The special counsel may have thought it would be difficult to prove beyond a reasonable doubt that Trump intended his followers to use force and violence to force their way into the Capitol rather than protest outside it.

McConnell said it is “significant that the Justice Department has prosecuted hundreds of individuals for their involvement in the Jan. 6 raid on the Capitol, but has not charged anyone, including Trump, with insurrection under this or any other statute.”

He also believes it would be a mistake to burden state officials with deciding who is eligible to run for president.

“We are talking about empowering partisan politicians, such as secretaries of state, to disqualify their political opponents from the vote, depriving voters of the ability to elect candidates of their choice,” he said. “If this is abused, it is deeply anti-democratic.”

However, Baude and Paulsen believe that the Constitution is clear and that Trump has violated it.

“January 6 was an uprising,” they wrote. “There is abundant evidence that Trump deliberately sought to reverse the results of the 2020 presidential election, calling it ‘stolen’ and ‘manipulation’.”

; and that h

E attempted to enlist state officials to change the vote count and urged state legislators to support him despite his loss.

When that effort failed, they wrote: “Trump rallied a large crowd to march to the Capitol and persuade Congress and the Vice President to grant his wishes and thereby complete the official tally of voters calling for the defeat of Trump affirmed, prevent.”

The bottom line is that Donald Trump was both ‘engaged in insurrection or rebellion’

and gave “help or comfort” to others who engaged in such behavior

… He is no longer eligible for the office of president, or for any other state or federal office governed by the Constitution. Anyone who is committed to the Constitution should take note and say so.”